The Regional Director vs M/S P.P.K.Sons on 15 December, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ins.APP.No. 93 of 2007()


1. THE REGIONAL DIRECTOR,
                      ...  Petitioner

                        Vs



1. M/S P.P.K.SONS, MOTOR SERVICE,
                       ...       Respondent

                For Petitioner  :SRI.T.V.AJAYAKUMAR

                For Respondent  :SRI.JOBY JACOB PULICKEKUDY

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :15/12/2008

 O R D E R
                      M.N. KRISHNAN, J.
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                  INS.APPEAL NO. 93 OF 2007
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       Dated this the 15th day of December, 2008.

                       J U D G M E N T

This appeal is preferred against the judgment of the

Employees Insurance Court, Alappuzha in I.C.82/04. It was

an application filed for setting aside the order of imposition

of damages. The E.I. Court after considering the materials

held that there are no sufficient grounds to impose damages

and therefore set aside the same and interfered with Exts.P2

order and P4 notice and upheld the validity of Ext.P3 order.

It is against setting aside Ext.P2 and P4, the insurance

Corporation has come up in appeal.

2. Heard the counsel for both sides. The learned

insurance Court held that there was no willful omission or

laches or any contumacious conduct on the part of the

applicant in committing delay in payment of contribution. It

was held that the delay was occasioned due to financial

difficulties of the applicant which has not been controverted

by the respondent. Recently, a Division Bench of this Court

INS.APPEAL NO. 93 OF 2007
-:2:-

in the decision reported in Regional Director, ESI

(ILR 2008 (3) Kerala Series 132) has held that when it is

proved that there was financial crisis and there was no willful

laches or negligence then the question of levying damages

has to be favourably considered and the power has to be

judicially exercised. The Division Bench also referred to the

dictum laid down by the Apex Court regarding the necessity

of mensrea and actus reus.

Here is a case where the delay has been occasioned

wholly on account of the financial crisis and no materials are

available to show that there has been any contumacious or

deliberate or willful conduct on the part of the applicant to

delay the payment. Therefore the judicial discretion has to

be exercised favorably in favour of the applicant and I do not

find that the E.I. Court had committed any mistake in doing

so. Therefore the appeal lacks merit and it is dismissed.

M.N. KRISHNAN, JUDGE.

ul/-